Turkey has become very popular internationally in terms of aesthetic operations in recent years. According to the data of the International Society of Aesthetic Plastic Surgery (ISAPS), it ranks sixth in terms of surgical and non-surgical aesthetic operations. The scope of the aesthetic operations in question is very wide, and we can count operations such as hair transplants, botox, fat grafting/liposuction, and nose reshaping surgeries within this scope.
In this article, the relationship between the physician and the patient in aesthetic operations and the legal responsibility of the esthetician are examined.
LEGAL CHARACTERISTICS OF THE AGREEMENT BETWEEN THE PHYSICIAN AND THE PATIENT
According to the generally accepted opinion in the doctrine, the relationship between the patient and the physician is in the nature of a "proxy agreement" (Although some authors describe the contract between the physician and the patient as a work contract, atypical contract, service contract as well, this discussion will not be examined herein).
In Article 502 of the Turkish Code of Obligations, the definition of the proxy agreement is made as follows: "A proxy agreement is an agreement in which the attorney undertakes to perform a job or to perform a transaction of the principal." Since the attorney will be an expert in their field, the element of "trust" is very important in proxy agreements. In addition, due to the nature of the contract, the principal does not have the opportunity to audit the attorney's works and transactions performed for the performance of the contract. Likewise, in the contract between the physician and the patient, the patient does not have the opportunity to supervise the physician's operations and must rely on their professional knowledge and experience. In the contract between the physician and the patient, as per the proxy agreement, a process is committed other than the result.
EXAMINING THE LEGAL CHARACTERISTICS OF THE CONTRACT BETWEEN THE ESTHETICIAN AND THE PATIENT
Aesthetic operations include different paradigms from general surgery operations due to the nature of the job. This issue has caused the contract on aesthetic operations to be defined differently from general surgical interventions in Turkish doctrine. Due to two different situations, the contract between the doctor and the patient will be described differently in aesthetic surgery;
- Performing aesthetic surgery due to a medical necessity,
- Performing aesthetic surgery for the sole purpose of beauty,
According to the doctrine and the jurisprudence of the Court of Cassation, if the aesthetic operation is performed as a result of a medical necessity, the relationship between the patient and the physician is within the scope of the proxy agreement, which we have explained in detail above, and the responsibility of the physician arises within this scope.
As a matter of fact, if the intervention is made for the sole purpose of beauty and aesthetic concerns, a "work contract" will take place between the physician and the patient.
According to Article 470 of the TCO; A work contract is an agreement in which the contractor undertakes to create something in return for a consideration. In terms of aesthetic surgery, the concept of "work" is the "result" that the physician undertakes to create on behalf of their patient. This result may appear as a beautiful nose, new hair from a hair transplant, or botox injection. The fact that the physician is responsible for the work and procedures performed required by the operation, as well as the "result of the operation", is one of the situations that distinguish aesthetic physicians from other physicians.
OBLIGATIONS OF THE ESTHETICIAN
Under Turkish law, we can list the obligations imposed on physicians as 'due diligence obligations', obligation of notification, obligation of diagnosis, confidentiality obligation, obligation of the physician to treat personally, and obligation to inform.
Physicians also have responsibilities arising from contractual obligations. In order to determine these responsibilities, it is important to determine what type of contract the relationship between the physician and the patient is based on.
According to the provisions of the proxy agreement, the obligations of the attorney are as follows; duty of care while doing the work, the duty of doing the work faithfully, the duty of doing the job in accordance with the instructions of the principal, the duty of doing the work given to them personally, the duty of accountability. As a result, in the relationship between the physician and the patient, the physician will be legally or criminally liable to the patient if they do not comply with these obligations. Within the scope of the said responsibility, it may be decided a physician pays compensation or is convicted if their actions are of a criminal nature.
Moreover, in accordance with the nature of the proxy agreement between the physician and the patient, the physician shall personally execute the work. According to Article 504 of the TCO, how and under what conditions the attorney will carry out the work is determined by the agreement between the parties. However, if the parties do not decide on any provisions regarding this matter, then the scope of the proxy is determined according to the "nature of the work". In the relationship between the patient and the physician, the physician will determine which work to be done within the framework of the due diligence and loyalty obligation since the patient cannot know the requirements of the medical field.
In cases within the scope of the work contract, physicians are also burdened with some additional obligations due to the nature of the contract. The obligation to avoid unnecessary risk is a broad reflection of the physician's loyalty and due diligence obligation. It is clear that every medical intervention carries serious risks in itself. Thus, the physician should consider the balance between the risk and the expected benefit from the intervention in the treatment they will apply to their patient. In this context, the physician is obliged to choose the method with the least risk. Consultation obligation refers to the obligation of specialist physicians to work together with patients who are related to more than one speciality. An interdisciplinary study is required in order for the correct diagnosis and follow the appropriate treatment method. In addition, physicians are obliged to respect the privacy of patients. As a matter of fact, according to Article 21 of the Patient Rights Regulation; "Respecting the privacy of the patient is essential". The patient can also explicitly demand the protection of their privacy. All kinds of medical interventions are performed by respecting the privacy of the patient. "In addition, in order for the medical operation to be lawful, the patient's consent must be obtained in accordance with the law ". The lawfulness of consent depends on the physician's compliance with the obligation to inform.
LEGAL RESPONSIBILITY OF THE ESTHETICIAN
Compensation Liability In Case of Violation of the Obligation to Inform
There are many risks in surgeries performed for aesthetic purposes. In order for the medical interventions of physicians to be legal, the patient must be diagnosed beforehand and the patient must be informed about the treatment and the possible risks. As a matter of fact, according to Article 18 of the Patient Rights Regulation, "Information is given as simple as possible, by avoiding hesitation and doubt, in a way that the patient can understand in accordance with their social and cultural level. " The burden of proof regarding this obligation has been duly fulfilled rests with the physician. In case the physician cannot prove that he or she has obtained the informed consent and consent of the patient, the physician's responsibility will arise and will be obliged to compensate the patient's loss.
Physician's Contractual Obligations
The physician is obliged to create the result they have committed within the scope of the "work contract". In this context, the physician has an obligation to carry out their work with utmost care. The burden of proof that they have fulfilled their duty of care is on the physician. The physician must prove that they show the care that an average physician does in their operations. Otherwise, the patient will be able to claim compensation for the damage by filing a malpractice action. Within the scope of breach of contract, the patient, before the court, can claim material compensation such as treatment costs, loss of earnings, loss of working power, damage caused by the deterioration of their economic future, and also immaterial compensation due to the sadness caused by the unwanted appearance caused by the aesthetic operation.
Physician's Criminal Liability
As a result of the physician's actions, criminal liability may arise. For example, if the patient dies as a result of the physician's faulty action; it constitutes the crime of involuntary manslaughter and the physician may be convicted as a result of the criminal action filed.
Similarly, if the aesthetic physician shares the patient on social media without the patient's consent, the violation of privacy may occur.
Benevolent Intervention (Negotiorum Gestio)
If an unexpected situation occurs while the patient is unconscious, the physician may have to take the necessary action. Since the physician's duty of care continues in such cases, the aesthetic physician will be responsible for all damages.
Physician's Tort Liability
Tort liability is a general liability regulated in the Code of Obligations and includes elements of "unlawfulness, fault, loss and causal link". In other words, if the patient has been harmed as a result of the physician's faulty act during the intervention, the tort liability applies. The faulty act of the physician may occur with the violation of a legal rule that prohibits the harmful act, or it may occur in the form of harming another person by an immoral act even if there is no prohibitive legal rule. It may occur as a result of fault or intention or by breach of the act requiring due care. However, in cases where a force majeure exists, the damage is caused by the patient's faulty act or the presence of a third party's fault exists, the casual link will disappear and therefore the responsibility of the physician will not arise.
It is possible for this type of liability to arise if the conditions occur in cases where there is no contract between the physician and the patient, it is also possible to apply this liability if damage has occurred as a result of a breach of contract if any contract is concluded, or if damage has occurred as a result of the physician's faulty act in an issue not regulated in the contract. However, this time, the burden of proof will be on the patient, not the physician.
It should also be noted that in cases where the physician works in a private hospital within the scope of a service contract or a public health institution as a civil servant since there will be no direct contractual relationship between the physician and the patient, there will be tort liability.
CONCURRENCE OF LIABILITY REASONS
The legal responsibility of the physician may be based on more than one of the reasons mentioned above at the same time. In this case, the injured party will be able to claim compensation based on tort or contractual liability provisions. As we have stated before if the injured person files a lawsuit based on tort liability, they will be obliged to prove the physician's fault. On the other hand, if it is based on contractual liability provisions, such a burden of proof will not arise. In addition, if the tort provisions are relied on, (as opposed to contractual liability) the physician can also benefit from exculpatory evidence within the scope of the responsibility of the assistant person's act. For all these reasons, it will be in favor of the injured patient to rely on the provisions of contractual liability. In addition, according to Article 60 of the Turkish Code of Obligations, in case of concurrence of liability reasons, the judge will decide according to the liability reason that provides the best remedy for the injured person, unless the injured party has requested the contrary or unless otherwise stipulated in the law.
In aesthetic surgery procedures, both legal and criminal liability of the physician may be in question. As briefly explained above, in operations performed solely for beauty, a work contract is deemed to have been established between the patient and the physician, and the physician is responsible for creating flawless work (flawlessly performing the operation promised before the surgery). If the physician does not comply with these responsibilities and obligations, they may have to pay compensation to their patient within the scope of contractual liability and/or tort liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.